Archive for February 2016

Each year, the pay of judges is determined – along with other public sector senior appointments – by the Government, following recommendations made by the Senior Salaries Review Board.

They come to their views in the light of evidence received from government and the judiciary themselves.

In January 2016, the Ministry of Justice’s evidence to the Board was published. It provides a great deal of statistical material on the judiciary – both in the courts and in tribunals.

The Government’s position is that overall increases in judicial pay should be limited to the target that has been imposed thoughout the civil service that total pay should increase by no more than 1%.

But the MoJ concedes that there is some evidence that, especially for appointments to the High Court, the recruitment and retention of highly qualified and experienced judicial expertise is proving a bit tricky. The attraction of the knighthood/damehood that all high court judges receive on appointment and a good pension are – it is argued – no longer sufficient. The Ministry of Justice is therefore suggesting that the pay of High Court judges should be enhanced by 3% – to be funded by lower pay increases for other judicial ranks.

The Senior Salaries Review Board has not yet reached its determination for this year.

Looking ahead, the Ministry of Justice contemplates that – in light of all the changes currently taking place in the justice systems – there should be a more fundamental review of judicial pay, taking into account no doubt whether the current numbers of judicial appointments are appropriate.

One of the really interesting ideas under consideration in government and the judicary is that of ‘problem solving’ courts. The concept has been floating around for some time but has recently been given new impetus.

The idea is that offender behaviour change might be enhanced through a model of judicially supervised rehabilitative programmes. These would be designed to encourage

innovation in the use of judicial disposals and improve compliance with the orders of the court; and to deliver a swifter and more certain response to crime and to reduce

reoffending.

In February 2016, the government announced the terms of reference for a working group – reporting to the Lord Chancellor and the Lord Chief Justice.

The working group will advise on:

existing models of problem-solving courts nationally and internationally, and their applicability to England and Wales;

the feasibility of options for pilot models including practical, legislative and constitutional issues, and judicial leadership;

the support needed from within and without the criminal justice system, including the development, or improvement, of pathways in to rehabilitative and behaviour change interventions

the key criteria for a future suite of pilots of problem-solving courts, including the lessons from previous pilots and the required statutory provisions for taking forward any new pilots.

The working group will need to take account of domestic and international evidence of what works well in engendering behaviour change through a problem-solving court approach. This includes the scope, quality and effectiveness of past and current models, in particular theUSA, Canada, Australia and New Zealand.The group should also consider the reasons why previous attempts at setting up Problem Solving Courts have been unsuccessful and take account of lessons learnt.

No date is given for the completion of the group’s work but I guess it won’t appear before the end of 2016.

It obviously is designed to fit with recent announcements about changes to the ways in which prisons are run – and the need to ensure that few people are actually sent to prison so that – om their different ways – both courts and the prison service will be working on offender education and rehabilitation.

One of the issues that the criminal justice system faces is to decide what incentives should be offered to those who are being prosecuted through the courts to plead guilty.

Legislation has for many years provided that sentencing discounts for early guilty pleas should be applied. (Criminal Justice Act 2003, s 144). Gudidance on how the power should be exercised was published in 2007.

Under s120(3)(a) the Coroners and Justice Act 2009 the Sentencing Council has been required to prepare new sentencing guidelines about the discharge of a court’s duty under

the 2003 Act. Following a period of research into how the current guidance is working, the Sentencing Council announced in February 2016 that it was consulting on new guidance on the reductions in sentence where a defendant pleads guilty.

In summary the Council proposes to bring forward the point at which a guilty plea must be made if the defendant is to obtain the maximum sentencing reduction.

It will do this by maintaining the current level of reduction (one third) for those who plead at the first stage of court proceedings, but giving a lower reduction than that available currently for a guilty plea entered any later in proceedings.

The stage at which an offender can benefit from the maximum one-third reduction will be much more tightly defined.

Under the Council’s proposals, to qualify for the maximum reduction, an offender must plead guilty the first time they are asked for their plea in court.

For offenders who plead guilty after that first stage the maximum reduction they can be given will be reduced to one-fifth, compared to one-quarter under the current process. Reductions then drop further the closer to the trial date the plea is entered.

It should be stressed that the reduction is expressed as a maximum – judges can deviate from the guidance in particular cases. Special considerations apply to murder cases.

The object of the proposed reforms is to try to ensure that more cases are dealt with by guilty plea, thereby reducing the resources required for trials.

The final guidance will be published following completion of the consultation, which runs until the middle of May 2016.

It is, to me, one of the curiosities of public life that U-turns are usually portrayed in the mass media as a sign of official/political incompetence. To me the idea that someone might change their mind because they had had second thoughts is a sign of maturity and intelligence.

Whether you regard the Secretary of State for Justice as incompetent or intelligent and mature, there is no doubt that his recent written statement to the House of Commons on the change of direction on Criminal Legal Aid reform is important.

The issues are:

1 Reductions in fees paid to legal aid applicants. They had been reduced in March 2014 by 8.5%. A similar sized reduction was planned for July 2015, but this was put on hold while the MoJ did not work to ensure that such a cut would be unlikely to reduce the quality of criminal advocacy. In his January 2016, Michael Gove has announced that there will be a further postponement of the proposed cut. “I have also decided to suspend, for a period of 12 months from 1 April 2016, the second fee cut which was introduced in July last year.” Whether or not that fee cut will be brought back into effect in April 2017 will depend on how the market for the provision of criminal legal aid services has developed in the meantime.

2 Consolidation of provision of criminal legal aid. There has long been a view in Government that there are too many soicitors’ firms offering criminal legal aid services. Various proposals have been made to reduce their number. The most draconian proposal was that existing criminal legal aid contract should be replaced by new contracts that would be awarded, following a tendering process, in which contracts would be awarded to those firms who submitted the lowest bids for legal aid work.

Unsurprisingly this was fiercely resisted by solicitors on the basis that, if implemented, this would be a ‘race to the bottom’ – standards would fall because services would only be offered by those charging the least.

Mr Gove’s predecessor, Chris Grayling, came up with an alternative plan, known as ‘dual contracting’. Under the dual contracting system, two types of contract were to be awarded to criminal legal aid firms.

An unlimited number of contracts for ‘own client’ work based on basic financial and fitness to practise checks – in others words continued payment for representing existing and known clients.

And a total of 527 ‘duty’ contracts awarded by competition, giving firms the right to be on the duty legal aid rota in 85 geographical procurement areas around the country, with between 4 and 17 contracts awarded in each. In other words, these contracts would allow a limited number of firms the chance to represent new entrants to the criminal justice system.

The dual contracting model was designed to meet concerns expressed by the legal profession about price competition.

A tender process under this proposed scheme did go ahead, but ended very badly with a lot of adverse publicity about both process and outcome.

The primary arguments against these alternative proposals were

Many solicitors firms feared that the award of a limited number of “dual” contracts – with a restriction therefore on who could participate in the duty legal aid rota would lead to a less diverse and competitive market.

Many barristers feared that the commercial model being designed by some solicitors’ firms would lead to a diminution in choice and potentially quality.

And, possibly the most compelling argument, many also pointed out that a process of natural consolidation was taking place in the criminal legal aid market, as crime reduced and natural competition took place.

In the face of considerable potential litigation (99 cases in the pipeline, plus a judicial review challenging the whole process), the Government has announced that this exercise will also be set aside. There will be a further review of the process towards consolidation early in 2017.

3 Quality of criminal advocacy. In the midst of all this, the report from Sir William Jeffrey on how to enhance the quality of criminal advocay has not been forgotten. Mr Gove stated:

I will also bring forward proposals to ensure the Legal Aid Agency can better support high quality advocacy. Furthermore, I intend to appoint an advisory council of solicitors and barristers to help me explore how we can reduce unnecessary bureaucratic costs, eliminate waste and end continuing abuses within the current legal aid system. More details will follow in due course.

I don’t think that criminal legal aid practitioners are completely off the hook as regards potential changes to how they work. But for the immediate future, things are clearer.

Stephen Lawrence was a Black British man from Eltham, south east London, who was murdered in a racially motivated attack while waiting for a bus on the evening of 22 April 1993. This shocking incident was the subject of an inquiry, led by Sir William Macpherson, which, when it reported in 1999, found among other things that there was ‘institutional racism’ in parts of the criminal justice system.

This in turn led the Judicial Studies Board to establish a programme of ethnic awareness training as part of its programme.

Notwithstanding the concerns raised by the Lawrence case, the present position is that:

BAME individuals currently make up over a quarter of prisoners – compared to 14% of the wider population of England and Wales.

BAME people make up a disproportionate amount of Crown Court defendants (24%).

Those who are found guilty are more likely to receive custodial sentences than white offenders (61% compared to 56%).

In light of these findings the Government has asked (January 2016) David Lammy MP to lead a review of the Criminal Justice System in England and Wales to investigate evidence of possible bias against black defendants and other ethnic minorities. With significant overrepresentation of black, Asian and minority ethnic (BAME) individuals in the criminal justice system, the review will consider their treatment and outcomes to identify and help tackle potential bias or prejudice.

As I note in my book Introduction to the English Legal System, the Youth Justice system has undergone enormous change in the last 20 years.

The current Government has, however, launched a review of the system and in February 2016 published the interim findings of the Review.

The review is led by Charlie Taylor, the former Chief Executive of the National College of Teaching and Leadership, the former head teacher of a school for children with complex behavioural, emotional and social difficulties, and an expert in managing young people’s behaviour.

The report finds that:

since 2006/07 the number of children in custody has declined by 64% to its lowest recorded level

of those children who remain in custody, almost two thirds reoffend within a year of release

around 40% of young people in under-18 Young Offender Institutions (YOIs) have not been to school since they were aged 14, and nearly nine out of 10 have been excluded from school at some point

children in YOIs are only receiving 17 hours of education every week against an expectation of 30 hours

The interim proposals from the review include:

re-designing the youth estate so that it can cater for a smaller, but more challenging, group of children in custody

placing education at the centre of youth custody, by drawing on the culture of aspiration and discipline which is evident in the best alternative provision schools

replacing youth prisons with smaller secure schools which help children master the basics in English and maths as well as providing high quality vocational education in a more therapeutic environment

giving local areas greater say in the way children are managed by devolving responsibility, control and money from Whitehall.

In addition, the review is also examining the way young offenders are dealt with in court and the sentences available, how to prevent offending in the first place and how to reintegrate children back into the community following custody.